People v. Nowak

5 N.Y.S. 239 | N.Y. Sup. Ct. | 1889

Barnard, P. J.

There is no evidence returned in this case, and it must therefore be assumed that sufficient evidence was given to support the verdict of the jury, based upon a charge of selling intoxicating liquors on Sunday. The return shows that the warrant was issued on the 15th of September, 1888; it was made returnable on the 21st of September, 1888. The accused then asked for the information, and was shown an affidavit made by one John Seaman, before a notary public of Suffolk county, that “he had bought *240liquor of him [defendant] at his saloon on one Sunday, in the month of May, 1888.” The defendant made a motion to discharge the arrest, because this affidavit was insufficient under sections 145-148, Code Crim. Proc. This motion should have been granted, as this paper is entirely insufficient to authorize a warrant.

The return shows that there was another paper of which the defendant was entirely ignorant when the motion to discharge was made. This was an affidavit of one George W. Jeffrey, that defendant, on the 20th day of May, 1888, and on divers Sundays since that date, has sold and given away intoxicating liquors. This affidavit was not prepared by the justice, and is in no sense on its face a statement of facts which prove a criminal offense. It was the duty of the justice to take an examination. Section 148, Crim. Code. The deposition must tend to establish the commission of the crime,—that is, it must state the particulars of a specific offense,—and it is only when the magistrate is “satisfied therefrom that the crime complained of has been committed,” and that there is reasonable ground to believe that the defendant committed it, that he must issue the warrant. The affidavit of Seaman is a nullity as a deposition of a witness preliminary to a warrant. The affidavit of Jeffrey does not pretend to set forth a particular crime. A general charge of guilt is made, but no facts showing a criminal offense are stated. It was a sufficient basis for an examination of the complainant and of his witnesses; none was offered or taken. The justice was therefore without jurisdiction, and the judgment of the justice, and of the county court affirming the same, should be reversed. All concur.

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